Safe Havens

(C)  Gratuity-Type Offenses Excluded.  In addition to bribery, federal law prohibits giving a gratuity to a federal official.  If the conviction is under a statute analogous to the anti-gratuity statute, rather than the bribery statute, it may not be considered to fall within this aggravated felony category.  Although the federal prohibitions against bribery and against giving a gratuity are housed in different subdivisions of the same section of the United States Code (18 U.S.C. § 201), there is an enormous difference between them, both in terms of their elements and in how severely they are punished.  The Supreme Court outlined that difference as follows:

Subsections (b) and (c) [of 18 U.S.C. § 201] set forth, respectively, two separate crimes – or two pairs of crimes, if one counts the giving and receiving of unlawful gifts as separate crimes – with two different sets of elements and authorized punishments. The first crime, described in § § 201(b)(1) as to the giver, and § § 201(b)(2) as to the recipient, is bribery, which requires a showing that something of value was corruptly given, offered, or promised to a public official (as to the giver) or corruptly demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient) with intent, inter alia, ‘to influence any official act’ (giver) or in return for ‘being influenced in the performance of any official act’ (recipient). The second crime, defined in § § 201(c)(1)(A) as to the giver, and § § 201(c)(1)(B) as to the recipient, is illegal gratuity, which requires a showing that something of value was given, offered, or promised to a public official (as to the giver), or demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient), ‘for or because of any official act performed or to be performed by such public official.’

            The distinguishing feature of each crime is its intent element.  Bribery requires intent ‘to influence’ an official act or ‘to be influenced’ in an official act, while illegal gratuity requires only that the gratuity be given or accepted ‘for or because of’ an official act. In other words, for bribery there must be a quid pro quo – a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken. The punishments prescribed for the two offenses reflect their relative seriousness: Bribery may be punished by up to 15 years’ imprisonment, a fine of $ 250,000 ($ 500,000 for organizations) or triple the value of the bribe, whichever is greater, and disqualification from holding government office. See 18 U.S.C. § § 201(b) and 3571. Violation of the illegal gratuity statute, on the other hand, may be punished by up to two years’ imprisonment and a fine of $ 250,000 ($ 500,000 for organizations).[317]

[317] See 18 U.S.C. § § 201(c) and 3571; United States v. Sun-Diamond Growers, 526 U.S. 398, 404-405 (1999); see also United States v. Strand, 574 F.2d 993, 995-96 (9th Cir. 1978).